Workplace bullying and harassment is more common than you may think. Not many people know what to do if they’re being bullied or harassed, or even what amounts to bullying and harassment, which means that a high percentage of incidents are not reported.
Workplace harassment has received a lot of public criticism in the media recently, from university conflicts over gagging orders, to the use of non-disclosure agreements for whistleblowers and the #MeToo campaign against sexual harassment. This has opened up discussion around bullying and harassment in the workplace, and highlights areas for HR teams and senior managers to improve.
It’s no longer enough for employers to just have a workplace bullying and harassment or dignity at work policy in place. We also need to be seen to be actively tackling these issues in the workplace.
Whilst the terms “bullying” and “harassment” are often used interchangeably, they are actually different and the legal basis for a claim for each is also different.
What is Bullying?
Bullying is offensive, intimidating, malicious or insulting behaviour, and/or an abuse or misuse of power that is meant to undermine, humiliate or injure the person on the receiving end.
What is Harassment?
Harassment is unwanted conduct related to relevant protected characteristics, which are sex, gender reassignment, race (which includes colour, nationality and ethnic or national origins), disability, sexual orientation, religion or belief and age, that:
- has the purpose of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person; or
- is reasonably considered by that person to have the effect of violating his/her dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for him/her, even if this effect was not intended by the person responsible for the conduct.
It’s important to note that conduct may be harassment whether or not the person behaving in that way intends to offend. Something intended as a “joke” may offend another person. Different people find different things acceptable.
Everyone has the right to decide what behaviour is acceptable to him/her and to have his/her feelings respected by others.
Some behaviour is clearly harassment, without the recipient having to make it clear in advance that it’s not acceptable to him/her, for example sexual touching.
Other behaviour may not be so obvious, for example, certain “banter”. In these cases, first-time conduct which unintentionally causes offence may not be classed as harassment. However, it will become harassment if the conduct continues once the recipient has made it clear that the behaviour is unacceptable to him/her.
Harassment may also occur where a person engages in unwanted conduct towards another because he/she perceives that the recipient has a protected characteristic (for example, a perception that he/she is gay or disabled), even if the recipient doesn’t have that protected characteristic. For example, it would be harassment for an individual to tease repeatedly an individual because of an incorrect belief that the recipient is deaf.
Similarly, harassment could take place where an individual is bullied or harassed because of another person that the individual is connected to or associated with, for example if his/her child is disabled, wife is pregnant or friend is a devout Christian.
A single incident can be harassment if it is sufficiently serious.
How do employees view workplace bullying and harassment?
Even if people know that they have been bullied or harassed, they may find it hard to discuss what is happening and tend to not come forward if they’re suffering from the effects of workplace bullying or harassment.
According to a BBC survey in 2017, half of British women and a fifth of men have been sexually harassed at work or their place of study. Of the women who said they’d been harassed, 63% said they didn’t report it to anyone. As many as 79% of the male victims kept it to themselves.
Bullying and harassment can involve an individual or a group. It can also be a one-off incident or several incidents. People tend to think that if it only happens once it cannot be classed as bullying or harassment, but this is not the case.
Examples of workplace bullying and harassment
- Spreading malicious rumours.
- Unwanted “banter”.
- Unfair treatment.
- Picking on or regularly undermining someone.
- Denying someone’s training or promotion opportunities.
- Name calling.
- Ignoring, isolating or excluding. Deliberating ignoring someone or excluding them from relevant meetings are ways of intentionally making someone feel isolated.
- Setting someone up to fail. Being set unachievable tasks or targets, designed to see an individual fail, is an example of workplace bullying.
- Giving an employee meaningless tasks. Everyone has to take their turn to make a round of hot drinks, but if an employee keeps being given all the worst jobs, it could be a sign of bullying.
- Aggressive behaviour. Any form of aggressive behaviour, such as shouting or intrusion of personal space, is unacceptable.
Above are just some examples of what can amount to workplace bullying and harassment. It’s important to train your staff about bullying and harassment, both so that they know whether their conduct falls within the definition, and so they know what to do if they, or colleagues, are being bullied.
From a risk management perspective, it’s important that you can demonstrate that you’ve taken the necessary steps to protect your staff from workplace bullying and harassment. A policy won’t be enough if you have a culture that tolerates some of the behaviours listed above.
What form does harassment take?
Most people assume that bullying and harassment can only occur face-to-face, but this is not the case. Workplace bullying and harassment can happen in many different formats including phone and communications applications.
Over time, bullying and harassment via electronic communications such as social media and email has increased. These methods of communication are now also used in the workplace, so you should ensure that, as part of any internal training you’re doing, you make staff are aware that any form of communication can be seen as workplace bullying or harassment.
What are the responsibilities of employers?
We are responsible for taking all reasonable steps to prevent or stop workplace bullying and harassment. If we fail to do so, any employees affected by this will have the right to bring a claim. In addition, bad feeling at work can affect morale, which can have a negative impact on the business.
If your employees are unhappy then productivity could be affected, and it could also result in loss of staff. We should do what we can therefore to prevent workplace bullying and harassment.
We can do this by proactively tackling workplace bullying and harassment through training and setting positive examples of our zero tolerance attitude to any negative behaviours.
Four ways to protect your organisation from workplace bullying and harassment claims
1. Train your staff
Training should be on the legal implications of getting things wrong, but also your culture and what is not acceptable. Once a culture has been established, positive or negative, it takes time and effort to change it.
To ensure your staff understand what is unacceptable, train them on equality, diversity and dignity at work from the start of their employment. Make sure, also, that you communicate that you enforce a zero tolerance policy towards bullying and harassment of any kind. If you ensure you are communicating this consistently, the culture will follow.
Remember also that training needs to be specific, thorough, and recent. If you are facing a claim for harassment and the last time you delivered training on the subject to your staff was ten years ago, this will not be enough to put forward a strong defence.
2. Have policies in place, and follow them
Ensure your policies on equality, dignity at work and bullying and harassment, grievance and discipline are up to date and easily accessible. Include them in your employee handbook or on the intranet. Make sure your policies tell employees what to do if they believe they are being bullied or harassed, and keep your policies reviewed and current. Having a zero tolerance policy towards bullying and harassment should be an active working strategy, not something that’s in place to tick a box.
If any of your staff feel that they are being bullied and/or harassed at work, they should be encouraged to discuss it with an appropriate person. You should see if the problem can be resolved informally. If this does not work, then the employee may need to make a formal complaint using your grievance procedure. Remember that, if the harassment continues, the employee may take legal action.
3. Investigate allegations
You should take complaints of bullying and/or harassment seriously. Where appropriate invoke the necessary procedures and ensure you’re investigating allegations promptly and appropriately. Investigations should be fair and thorough. Enter an investigation with an open mind, rather than believing one employee over the other, to ensure your investigation is fair. Consider using an external investigator to ensure objectivity and bias are eliminated from your bullying and harassment investigations.
4. Take the necessary action with no exceptions
If, following an investigation, you have reason to believe a member of your staff may be guilty of bullying and/or harassment, use your disciplinary procedure to deal with the allegations fairly.
This will enable the accused employee to fully respond to the allegations and give you an opportunity to take a view as to what has happened, and what action should be taken.
If the activities of the employee are serious or take place following training, a warning or possibly even dismissal may be necessary. Adequately addressing bullying and harassment in the workplace may require you to dismiss a top earner, or the most popular employee in the office, because he or she is sexually harassing staff or is a bully.
High earners can sometimes be detrimental to the business if they ‘get away with’ unacceptable behaviour because of their success elsewhere.
There should be no exceptions. Remember that discrimination claims are uncapped at tribunal.
The process may bring to your attention deeper problems within your culture. For example, “workplace banter” is often something that employees refer to when responding to allegations of inappropriate behaviour. Consider whether or not you may need to put in place any workplace interventions to address the cultural issues. Examples of interventions may be: focus groups; staff and management training; updating policies and including the management of bullying and harassment as a KPI in management appraisals.
Who is liable?
If an employee harasses another employee, he or she can be personally liable. In addition, an employer will be liable for acts of discrimination, harassment and victimisation carried out by its workers in the course of their employment.
It doesn’t matter whether or not the employer knew about or approved of what the worker did. In these cases, the employer is responsible for the actions of its employee, unless it can rely on what is known as the statutory (or reasonable steps) defence.
Statutory (or reasonable steps) defence for employers
An employer will not be held legally responsible for acts of discrimination or harassment by one of their employees if it can show that it took all reasonable steps to prevent the worker from being harassed.
The statutory (or reasonable steps) defence allows an employer to avoid liability in cases of harassment if it can be shown that you took all reasonable steps to prevent the harassing employee from acting unlawfully.
If you follow the four steps outlined above, you may be able to use the statutory (or reasonable steps) defence if a claim is raised.
If you’d like support with any of the aspects mentioned in this article, please contact our team of HR Consultants on 01271 859267 or email firstname.lastname@example.org